In the spring of 2010 the late Antonio Cassese requested me to contribute an essay in a volume he was planning on “Realistic Utopias”. I knew that Nino was a great believer in the idea of the “international community” and appreciated his willingness to engage me in a discussion of something he knew I had little faith in. By the end of 2010 I had produced a slightly ironic text that used Sigmund Freud’s famous contemplations of the “oceanic feeling” in Civilization and its Discontents as the platform over which to think about “international community”. I gave it the title “Projects of World Community”.

During 2011 I heard no more about the matter. As I then read about Nino’s passing away, I assumed that there would probably be no publication at all. Towards the end of the year, however, his collaborator, Professor Paola Gaeta contacted all the contributors, informing them that the project would go ahead, but in order to avoid delays the contributors would not see the proofs. I admit I was worried. Prior experience about publishing texts I did not proofread myself was not encouraging. But I did not react. How stupid of me.

Then in early 2012 the book Realizing Utopia. The Future of International Lawcame out from Oxford University Press. I was notified of this by email and – like I am sure all the other authors – went immediately and somewhat anxiously to the OUP website to see what it, and especially my essay, looked like. I was happy to notice that the book actually opened with my text. My text, yes, but not my title. What had read “Projects of World Community” had become “The Subjective Danger of Projects of World Community”. I was stunned. Where had “Subjective Dangers” come from? And what on earth did they mean? I immediately contacted professor Gaeta and the OUP to return to my original title – but of course that was already too late. The book was out. I did receive very sympathetic reactions, however. It was clear that Nino himself had added those words – probably contemplating that he would suggest them to me during proofreading. But then fate intervened. Nino would not live to carry out that process.

And so I am now staring at a title to my essay that is not only incomprehensible but – more damagingly – points in a direction that is against everything I have written. Adding the words ” Subjective Dangers ” to my original “Projects of World Community” undermines the very point of the essay. The point which both Freud and I are making is that the sense of an “objectively” existing world community is based on a “subjective” feeling about being one with humanity. It points to no “danger” at all. It suggests the usefulness of taking a psychoanalytical approach in trying to understand a phenomenon. Ever since From Apology to Utopia I have been making the point over and over again that the “subjective” and “objective” are so completely enmeshed in each other that it is impossible, and in fact, ideologically dubious, to try to do separate them. We live in an era where we are often called upon to make “objective” points and to avoid “subjective” feelings. It is this demand that I have repeatedly attacked in my writings. There is no “objective” point of view at all, though some of us may experience (“oceanic”) feelings that make them believe they are speaking for something larger than themselves. If there is “danger” anywhere, it is not in the subjective nature of our feelings, but our attempt to persuade others that they are based on something grander, or experience something others should feel, too.

But now I have to live with a title that has destroyed that message and has put me in the position that I am attacking. Oh well. In the grander scheme of things, this is a very minuscule problem. The OUP has promised to insert a slip in the book, reading “Correction: Readers are advised that the correct title of chapter 1 by Martti Koskenniemi is simply Projects of World Community and it should be cited as such”. I am grateful for this. It does not make the problem go away, however, and some readers will be puzzled over the present title, and some of them will draw the conclusion that I have simply gone crazy. But I suppose this is in the nature of the perils of publishing. After having written the present text, and having spread it out as widely as I can, I will soon forget the matter. I certainly do not want it to stain Nino’s memory in any way; he was cut in the middle of so many activities, of which this was one of the least important. But to draw some benefit out of the situation, perhaps the lesson could be drawn once more: always insist on seeing the proofs.

The essay (see here) examines some of the changes in my own thinking about the politics of engaging in international law since the original publication of the article (see here) that opened the first issue of EJIL in 1990. The essay points to the change of focus from indeterminacy (to which I am as committed as ever) of legal arguments to the structural biases of international institutions. I still think the study of language must remain an important part of the critical project. That study must now focus on the idiolect of the particular technical fields have occupied the centre of the discipline. In fact, the emergence of numerous specialised fields of international law, suggests that the centre of the discipline may have completely collapsed. Much of this has to do with the politics of definition, that is to say, the strategic practice of defining international situations and problems in new expert languages so as to gain control over them. There are two distinct approaches to this internal power-struggle. One, persuaded by the regimes which are bold in ambition and able to rely on the support of some powerful sector of the political world aims at changing the general bias of the law by bringing it closer to its own. Another, more modest in its ambitions but not necessarily less effective, aims at establishing patterned exceptions to the well established classical concepts, seemingly without intercepting the application of these old biases on a general level. This approach does not establish new rules, but new exceptions to the old rules owing to new emerging “challenges”.

With this, the politics of international law has taken the form of struggles for jurisdiction. Because each specialist vocabulary claims to be applicable to everything, this conflict cannot be managed by comparing them against each other. Each is applicable and the question of whom to empower can only be answered after the prior question “which bias do you prefer” has received a response.

This new political intervention in international law, the politics of re-definition, is based on fragmentation. It involves strategic definitions of situations by reference to a technical idiom so as to secure the application of the expertise related to that idiom with all its structural biases. The ultimate goal of the politics of definition is to upgrade a particular idiom to the level of universality, securing to its methods (and ultimately its outcomes) the character of neutrality or, even better, of “reality” itself. The consequences of such approaches, which conceal the application of structural biases behind the application of “objective reasons”, calls for taking a highly critical attitude toward the increasing managerialism in the field.

Committing to one of these institutions (or to that end even the prevalence of one over the others) does not resolve any of the problems of indeterminacy, since every particular field has its own controversies and compromises. Read the rest of this entry…